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Thread: Open Carry in Kittery - current ordinance prohibits it

  1. #1
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    Open Carry in Kittery - current ordinance prohibits it

    I've seen a few posts mentioning carrying in Kittery at the Trading Post and as a resident I've recently taken an interest in our local ordinances pertaining to firearms.

    While I understand that the local ordinances are preempted by state law, I was disappointed to read the following Kittery town ordinance:

    9.1.2 Firearms—Unlawful discharge.
    9.1.2.1 No Firearm Discharge Zone.
    It is unlawful to discharge or intend to discharge a firearm in certain areas within the Town, as set forth in Section 9.1.3.2 of this section. This area is known as the “no firearm discharge zone.”
    If a person is found to be in possession of a loaded firearm outside of the person’s residence within the “no firearm discharge zone,” it is considered prima facie evidence of the intent to discharge the firearm. This section does not apply to persons holding a valid permit to carry a concealed weapon under 25 M.R.S. §2003.
    (http://www.kitteryme.gov/Pages/Kitte...ode/Title9.pdf)

    Paragraph 2 (bold) concerns me because it makes carrying a loaded firearm a violation of the discharge ordinance. (the 'No Firearm Discharge Zone' covers most of the town including all of the Rt. 1 shopping areas)

    I do have CCW permit so I'm allowed to carry under this ordinance, but I still don't like it. I realize it isn't enforceable because of Maine's preemption law but that doesn't mean that the local LEOs fully understand that and they have to enforce local ordinances, which would suggest they are likely to give OCs a hard time. (This is why I CC)

    I'm thinking about trying to get the local ordinance changed. Does anyone have any experience with this at the local level? Who did you start with, what did you learn?

    Thoughts, ideas?

  2. #2
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    Bob Wiles:

    I would take a Copy of Maine Revised Statute 25 §2011 to The City Clerk, Ms. Mayann Place, Cooupled together with a Letter Explaining Your Grievance.

    Ask Her to Submit Your Written Concern, with The Revised Statue Attachment, to The Town Council.

    Hopefully, The Town Council will Present The Complaint to The Kittery Attorney, who will Agree on Your Complaint based on Your Concern, and will Advise His or Her Client to Repeal The Offensive Portion of The Ordinance in Light of Maine Law.

    aadvark

  3. #3
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    Cool, thanks for the suggestions. I actually know Maryann and several members of the town council.

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    Smile Interesting!

    Just saying hello - I had a girlfriend a couple decades ago whose Dad was in the Navy, and they all moved to Kittery (he was stationed in Portsmouth). He retired and they're all in TX now, so no more connection to the area, but I saw your town's name and gave the thread a read.

    I'd agree with the idea to take it up with the council - point out the pre-emption language in state law and let them know that if the ordinance is on the books, officers have to enforce it, regardless whether it's invalid based on state law. It puts citizens in the position of being wrongfully detained, charged and arrested, costs them their freedom (albeit temporary), money and time to get it cleared up in court.

    Point out also that its enforcement diverts law enforcement time and resources from serving and protecting the citizens from actual crimes that are prohibited under state law and local ordinance, and also bogs down judicial resources (prosecutors and judges and clerks) which are better spent on actual crimes and prosecutions with a chance of success.

    Finally, it may be worthwhile to note that if you provide the council with a copy of state law (formally - at a meeting on the record, and/or through written correspondence - cc the city attorney, too), it puts them on notice that their ordinance has been pre-empted by state law. Once on notice that the ordinance is invalid on its face, it is always best for the council to act immediately to repeal, rather than leave it "on the books" and risk a lawsuit from a wrongfully-detained/arrested/charged citizen for wrongful arrest and/or prosecution, and the attendant civil rights violations (42 USC §1983 suits, etc.). (Yes I am one, but not licensed in ME. I'd sure be hammering on the notion of "they knew it was an invalid ordinance, they got written notice, they knew a citizen could be wrongfully detained/arrested/charged/prosecuted, they are presumed to know the law, they took an oath of office to act in the best interests of every citizen and have an obligation as public servants to act in the public's best interests as a whole as well as at the individual level, and yet they did nothing...they consciously chose to ignore the risk that someone's civil rights would be violated under this law...and now it has happened" to a jury if it were my client).

    It also puts officers at risk of personal liability, even though they are most likely immune as having acted in the course and scope of their law enforcement duties, but they'd nonetheless suffer personally and professionally from being dragged into a big lawsuit for only doing their job, which we'd all like to avoid for their sake as well.

    Just my $.02 - keep the change, and this Spud wishes all you Mainers a great day -
    Last edited by DCR; 12-19-2012 at 08:42 PM.

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    Excellent, thanks for all the good advice! Some excellent points, especially about giving notice in public. I'm on the local school board, so I do want to be mindful of not alienating half of the town who have different views but I think that pointing out ANY invalid local ordinance does the town a good service for all of the reasons you outlined.

    The Portsmouth Naval Shipyard is still alive and well, with recent contracts having been awarded to continue submarine production. Technically, the shipyard has been determined to be on Maine land but it isn't something that will ever be a priority to change. We have a ton of great people join our community for a few years and then move on to other locations. In fact, we have a great program in our schools to welcome new students and this is mainly focused towards military families that join our community.

    Thanks again!

  6. #6
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    Don't worry about it, it's an illegal ordnance. Reference the post I made called something like "Issued Citation for Open Carrying In My Driveway" for my experience with cops believing that city ordnances trump state law. They might give you a hard time, you might even get a court date, but it will get thrown out eventually. Just use it as an opportunity to educate them.
    Once more into the fray.
    Into the last good fight I'll ever know.
    Live and die on this day.
    Live and die on this day.



    "I knew one thing: as soon as anyone said you didn't need a gun, you'd better take one along that worked."
    Raymond Chandler

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